Case Name: Syed Nazim Ali v. Cisco Systems, Inc.

Case No.: 18-CV-328966

Currently before the Court are the demurrer and motion to strike by defendant Cisco Systems, Inc. (“Cisco”).

Factual and Procedural Background

This employment action for discrimination based on age, race, national origin, and religion arises out of Cisco’s alleged refusal to hire plaintiff Syed Nazim Ali (“Ali”).

On April 3, 2017, Ali applied for the following positions with Cisco: Senior Security Consultant; VPN Security Technical Support Engineer; Hybrid Cloud Consultant; Security Consulting Systems/Sales Engineer; IT Auditor; Security and Compliance Analyst; and Corporate Systems Engineer. (Complaint, ¶¶ 9 & 36.) Despite the fact that Ali was qualified for the positions, Cisco did not hire him. (Id. at ¶¶ 6-8, 10-11, & 24.) Cisco allegedly discriminated against Ali because he is over forty years old, Muslim, and of Pakistani descent. (Id. at ¶¶ 12-27, 29-31, 38, 46-53, 56-61, 68-70, 74, & 75.) Ali alleges that “[i]ndividuals 40 years of age and older are rarely in a [m]anagement position at Cisco,” “South Indian and Indians … are the ones who many times make the decisions as to which employee to hire,” and Cisco “has a preference for people who are of the South Indians and Indians decent [(sic)] who are in management … .” (Id. at 18, 21, & 23.) Ali allegedly suffered physical, emotional, and psychological damages as a result of Cisco’s conduct. (Id. at ¶¶ 28, 30, 39-42, 62, & 76.) Ali filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) on June 5, 2017, and received a notice of right to sue. (Id. at ¶ 32 & Ex. A.)

Based on the foregoing allegations, Ali filed a complaint against Cisco on May 31, 2018, alleging causes of action for: (1) discrimination based on race in violation of the Fair Employment and Housing Act (“FEHA”); (2) discrimination based on age in violation of the Age Discrimination Employment Act of 1967 (“ADEA”); (3) discrimination based on national origin in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”); (4) discrimination based on race in violation of Title VII; (5) discrimination based on religion in violation of Title VII; (6) retaliation in violation of the FEHA; and (7) intentional infliction of emotional distress (“IIED”).

Subsequently, Cisco removed the action to federal court. On February 13, 2019, the federal district court issued an order granting Cisco’s motion to dismiss Ali’s second cause of action for age discrimination under the ADEA, third cause of action for national origin discrimination under Title VII, fourth cause of action for race discrimination under Title VII, and fifth cause of action for religious discrimination under Title VII. The federal court declined to assert supplemental jurisdiction over the remaining state law causes of action, and remanded the action to state court.

On April 12, 2019, Cisco filed the instant demurrer and motion to strike. Ali filed an opposition on April 22, 2019. On July 25, 2019, Cisco filed a reply.

Discussion

I. Request for Judicial Notice

In connection with its demurrer and motion to strike, Cisco asks the Court to take judicial notice of: (1) the federal district court order dated February 13, 2019, dismissing Ali’s federal claims and remanding this action to state court; (2) court orders issued in other federal actions brought by Ali against various companies; and (3) a charge of discrimination filed by Ali with the EEOC.

“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 364; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)

Here, the federal district court order issued in this action is a proper subject of judicial notice under Evidence Code section 452, subdivision (d) because it is a court record relevant to the pending matters. (See Evid. Code, § 452, subd. (d) [permitting judicial notice of court records]; see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [the court may properly take judicial notice of court records if those records are deemed to be necessary and relevant to the disposition of the motion]; People v. Woodell (1998) 17 Cal.4th 448, 455 [courts may “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.”].)

Next, the court orders dismissing other federal actions filed by Ali against various companies pursuant to Federal Rule of Civil Procedure 12(b)(6) are not proper subjects for judicial notice because they are not relevant or necessary to the disposition of the pending matters. (Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18 [“ ‘There is … a precondition to the taking of judicial notice in either its mandatory or permissive form—any matter to be judicially noticed must be relevant to a material issue.’ [Citations.]”].)

Finally, the charge of discrimination Ali filed with the EEOC is a proper subject of judicial notice because it is referenced in the complaint. (See StorMedia Inc. v. Super. Ct. (1999) 20 Cal.4th 449, 457, fn. 9 [indicating that a document referenced in a pleading under review is judicially noticeable, but the truthfulness and proper interpretation of the document are disputable]; see also Salvaty v. Falcon Cable TV (1985) 165 Cal.App.3d 798, 800, fn. 1; Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1285, fn. 3 [taking judicial notice of a letter and media release that formed the basis of the allegations in the complaint].)

Accordingly, Cisco’s request for judicial notice is DENIED IN PART and GRANTED IN PART. The request is DENIED as to the court orders dismissing other federal actions filed by Ali. The request is GRANTED as to the federal district court order issued in this action and the charge of discrimination filed with the EEOC.

II. Demurrer

Cisco demurs to the first, sixth, and seventh causes of action of the complaint on the ground of failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).)

A. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “ ‘[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice’ [citation].” (Hilltop Properties, Inc. v. State (1965) 233 Cal.App.2d 349, 353; see Code Civ. Proc., § 430.30, subd. (a).) “ ‘It is not the ordinary function of a demurrer to test the truth of the … allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. … .’ [Citation.] Thus, … ‘the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation.]’ [Citations.]” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958.)

B. First Cause of Action

Cisco argues that the first cause of action for race discrimination in violation of the FEHA fails to state a claim because Ali does not allege sufficient facts showing that he was qualified for the jobs for which he applied or that it acted with any race-based animus when it refused to hire him.

The FEHA makes it unlawful for an employer to refuse to hire a person because of his race or other statutorily specified reasons. (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1004, fn. 4 (Hicks); Gov. Code, § 12940, subd. (a).) “Failure-to-hire claims under the FEHA are subject to the burden-shifting framework of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 … (McDonnell Douglas).” (Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726, 736 (Abed).) “Although ‘[t]he specific elements of a prima facie case may vary depending on the particular facts,’ the plaintiff in a failure-to-hire case ‘[g]enerally … must [establish] that (1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought …, (3) he [or she] suffered an adverse employment action, such as … denial of an available job, and (4) some other circumstance suggests discriminatory motive,’ such as that the position remained open and the employer continued to solicit applications for it. [Citations.]” (Abed, supra, 23 Cal.App.5th at p. 736; Hicks, supra, 160 Cal.App.4th at pp. 997-1002, fn. 3, citing McDonnell Douglas, supra, 411 U.S. at p. 802; McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 979.)

Here, Ali does not allege sufficient facts showing some other circumstance suggesting that Cisco acted with a discriminatory motive. The factual allegations set forth in the complaint are that Ali applied for several positions with Cisco, but did not receive any offers, despite his significant experience and training in the field. While the complaint also contains conclusory allegations that Cisco’s refusal to hire Ali was due to racial animus, Ali does not provide sufficient facts to support this inference. Ali merely alleges that persons of Indian origin are in management positions at Cisco and regularly make hiring decisions. But the fact that management personnel at Cisco are of a particular heritage does demonstrate that their refusal to hire Ali was based on his race.

Accordingly, the demurrer to the first cause of action is SUSTAINED with 10 days’ leave to amend after service of this signed order.

C. Sixth Cause of Action

Cisco argues that the sixth cause of action for retaliation in violation of the FEHA fails to state a claim because Ali does not allege that he engaged in any protected activity in connection with his applications for employment.

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

As Cisco persuasively argues, Ali fails to allege sufficient facts showing that he was retaliated against for engaging in protected activity. In the complaint, Ali does not identify the conduct that allegedly constitutes protected activity. Instead, Ali merely alleges that Cisco retaliated against him by refusing to hire him. Consequently, Ali has not established that he engaged in a protected activity or that Cisco retaliated against him for engaging in that activity.

Accordingly, the demurrer to the sixth cause of action is SUSTAINED with 10 days’ leave to amend after service of this signed order.

D. Seventh Cause of Action

Cisco argues that the seventh cause of action for IIED fails to state a claim because its alleged refusal to hire Ali is conduct that is not so extreme as to exceed all bounds of that usually tolerated in civilized society.

“The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494 (Cochran); see Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 744-745; see also CACI, Nos. 1600 & 1602.)

“There is no bright line standard for judging outrageous conduct and its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical.” (Cochran, supra, 65 Cal.App.4th at p. 494.) “Even so, the appellate courts have affirmed orders which sustained demurrers on the ground that the defendant’s alleged conduct was not sufficiently outrageous.” (Ibid.; Bock v. Hansen (2014) 225 Cal.App.4th 215, 235 [“many cases have dismissed [IIED] cases on demurrer, concluding that the facts alleged do not amount to outrageous conduct as a matter of law”]; Mintz v. Blue Cross of Cal. (2009) 172 Cal.App.4th 1594, 1607-1609 [whether a defendant’s conduct as alleged is sufficiently outrageous to support a claim for IIED may be determined on demurrer]; Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883 (Trerice) [“While the outrageousness of a defendant’s conduct normally presents an issue of fact to be determined by a trier of fact, the court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.”].)

“ ‘[I]n evaluating whether the defendant’s conduct was outrageous, it is “not … enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” ’ ” (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1517 citing Cochran, supra, 65 Cal.App.4th at p. 496; Trerice, supra, 209 Cal.App.3d at p. 883 [“Conduct, to be ‘outrageous’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.”].)

In the seventh cause of action, Ali alleges that Cisco engaged in extreme and outrageous conduct by refusing to hire him. (Complaint, ¶ 481.) Here, the Court agrees with Cisco that the alleged wrongful conduct is not, as a matter of law, sufficiently extreme or outrageous. (See Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80 [personnel management decisions (such as termination, demotions, promotions, and criticism of work practices) are generally insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged]; see also McCoy v. Pacific Maritime Association (2013) 216 Cal.App.4th 283, 294-295; Helgeson v. American Intern. Group, Inc. (S.D. Cal. 1999) 44 F.Supp.2d 1091, 1095.)

Although the complaint contains allegations of a discriminatory motive, those allegations do not satisfy the extreme and outrageous conduct element. The only conduct by Cisco is the refusal to extend Ali an offer of employment and this routine personnel management action does not constitute outrageous conduct as a matter of law. (See Cochran, supra, 65 Cal.App.4th at p. 496 [“In evaluating whether the defendant’s conduct was outrageous, it is ‘not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ [Citation.]”].)

Accordingly, the demurrer to the seventh cause of action is SUSTAINED WITHOUT LEAVE to amend. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [a plaintiff has the burden to show in what manner the complaint can be amended and how that amendment will change the legal effect of the pleading]; see also City of Stockton v. Super. Ct. (2007) 42 Cal.4th 730, 747 [leave to amend is not warranted if the pleading shows on its face that it is incapable of amendment].)

III. Motion to Strike

For the reasons explained above, Cisco’s demurrer is well-taken as to all remaining causes of action of the complaint.

Cisco moves to strike Ali’s request for punitive damages.

In light of the Court’s ruling on Cisco’s demurrer, the motion to strike Ali’s request for punitive damages is MOOT.

Plaintiff is advised that this order only grants permission to amend the First and Sixth Causes of Action, and not to add any new causes of action, or to renew any of the causes of action that the Federal Court dismissed.

The Court will prepare the Order.